ELR Citation: ELR 20980
No(s). 93-1099 (3d Cir. May 25, 1994)

The court holds that a consent decree for the cleanup of a Superfund site between the U.S. Environmental Protection Agency (EPA) and potentially responsible parties (PRPs) that expressly reserves the settling PRPs' contribution rights against nonsettling PRPs can create a legally protectable interest sufficient to support intervention as of right under §113(i) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The settling PRPs challenged a subsequent consent decree involving other PRPs that had the potential to extinguish the earlier settlors' contribution rights under the earlier decree. Sixty-five PRPs entered into the first consent decree, which contained one provision that reserved the PRPs' right to sue all nonsettling parties for contribution and another provision stating the government's intent not to include in any future settlement concerning the site a broader covenant not to sue than the one contained in the early settlors' decree. In subsequent litigation, the government settled with a second set of PRPs, and the early settlors moved to intervene.

The court first holds that any interested party can intervene under §113(i). The language in §113(i) is clear and Congress would not have used the same language in §113(i) as that in Fed. R. Civ. P. 24(a) if it had intended a different result. The court next holds that the early settlors' motion to intervene was timely, because under the totality of the circumstances, the early settlors took reasonable steps to protect their interests. Moreover, the timeliness inquiry should be measured from the point at which an applicant knows or should know its rights are directly affected by the litigation, and here, the early settlors moved to intervene when they became aware of the potential risk to their contribution claim. The court next holds that the early settlors' right to seek contribution under CERCLA §113(f)(3)(B) is a legally cognizable and sufficiently protectable interest in the litigation to permit their intervention. The court remands the action, however, because it is unclear from the record whether the subsequent consent decree actually affected the intervenors' interests.

Counsel for Appellee
John T. Stahr
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellants
Antoinette R. Stone
Buchanan & Ingersoll
Two Logan Sq., 18th & Arch Sts., 12th Fl., Philadelphia PA 19103
(215) 665-8700

Before Alito and Bassler,^* JJ.: